August 10, 2012

Journalists’ Roundtable

Ted Simons: Good evening, welcome to "Arizona Horizon" "Journalists' Roundtable," I'm Ted Simons. Joining me tonight are Mary K. Reinhart of the "The Arizona Republic," Howard Fischer of "Capitol Media Services," and Jim Small of "Arizona Capitol Times." The State conducts a lottery to award medical marijuana dispensary permits, this as state leaders look for ways to keep the program from being enacted. So does the left hand know what the right-hand is doing here, Mary? What's going on with this?

Mary K Reinhart: We've sort of been here for a couple of years, really. It was a legal quandary before it was ever passed by voters the first and second and third times. Tuesday there was a selection of roughly 65, 68 businesses or individuals who won the right to perhaps open a dispensary in these competitive areas around the state, a lot of them in Maricopa County and Pima. There are 26 areas, many of them on the reservations, that are going to have no dispensaries. But having said all that, this has still wound up in court. The Attorney General and County Attorney Bill Montgomery are saying gee, not so fast, we’re going to try to put a stop to it before it begins. Then you've still got business owners and entrepreneurs weeks away if not days away from being able to ask the State to come along and inspect their properties so they can open a dispensary to dispense medical marijuana to people who are rightly -- 29,000 people in this state allowed to use it.

Howard Fischer: Look, let's cut through the smoke on this thing. Bill Montgomery never liked the medical marijuana initiative, Tom Horne never liked it, Jan Brewer never liked it. They refused to work on it until a state judge issued a mandate that said, you will comply with what the voters said, which led to what happened this past week. Now Bill Montgomery has a theory that, well, it's preempted by federal law. Well, there is a conflict with federal law. The question becomes -- nothing in our laws keeps the Feds from coming in, if they want to arrest any of these 30,000 people with the cards, they can do that and close down the dispensaries. Now Bill Montgomery says somehow we have to enforce federal law. That's where the wheels come off the train.

Ted Simons: Indeed, I think there was there was a court case in California where basically the judge said, yes, it would be preempted if the Feds tried to enforce. But the Feds aren't trying to -- nothing's keeping the Feds from enforcing. So, what's --

Mary K Reinhart: You can find a court case to boost your opinion or view of this thing around the country. There are court cases that say, yes, there is a conflict. They will be in conflict unless and until Congress decides to change federal law. Nothing stops the federal government from coming in and busting everybody if that's what they want to do. They have, however, said in their mysterious, somewhat vague way, we're not going to bust grandma in her wheelchair, people rightly following state medical marijuana laws. 17 states now have them, who are using it within the boundaries of state law. They say they are going after big-time drug dealers. Whatever that means.

Ted Simons: But Jim, the idea that this program can go along, side by side with federal law that says the program is illegal, it can go along side by side up to and until the Feds decide to prosecute or enforce.

Jim Small: There's a lot of parallels between this and what Immigration Customs Enforcement is doing with illegal immigrants. The federal government is saying, we're only going after drug traffickers and people illegally using this kind of state system to -- to do major drug trafficking and major drug sales. On the immigration side they are saying, we're not going after folks here following the law, who are coming here to make a better life. We are going after human smugglers and drug traffickers and gun runners and things like that. In a lot of ways it's kind of how they want to apply their resources. Yeah, there is a conflict, absolutely, until they come out and say they are going to bust all these people. People are free to do I guess whatever they want.

Howard Fischer: Let's go a step further. If Arizona were to decide tomorrow through an initiative or the legislature to make marijuana legal, take all the anti-marijuana laws off the books, we can do that, there's nothing the Feds can do about it. They are free to come in and start busting users, which again, they are not going to do. We've just done a controlled form of decriminalization. Bill Montgomery is saying, wait a second, when you're asking county and state officials to be a part of this rezoning, in the Sun City case, with the state issuing permits, now you're facilitating a violation of federal law. That's the lever he's trying to use.

Mary K Reinhart: And again, what's already been decided by federal judges, show me when the federal government prosecutes a state or county employee, and then you've got a case. That's not been the case anywhere in the country. There's not been prosecution of public employees. Not only are there political parallels, this is dicey politically, we have voters approving this. But it’s a question of resources. If you bust these people, you gotta make sure you've got the resources to take them to trial and go ahead and finish the case. I'm not sure they have those kinds of --

Howard Fischer: Well, talk about 30,000 people, several years ago we decided first and second offenses for marijuana are basically diversion offenses. Do we really want to go down this path?

Ted Simons: How quickly could we see the first dispensary open?

Mary K Reinhart: As quickly as the state department of health services can get their licensing folks out to a couple of locations. A couple of folks already have caregiver operations and grow sites behind those. They are physically set up to go, pretty much; they are almost ready, so a matter of weeks.

Ted Simons:Literally by the end of the month we could see these things popping up.

Mary K Reinhart: We could see dispensaries opening up.

Ted Simons: The courts are blocking the open primary on this. This has gotten so much attention, and it's not even close to being on the ballot, because it comes and goes. Now we have a court decision -- we talked about this before -- the single subject rule?

Howard Fischer: This is a perennial. This is a favorite challenge to constitutional amendments. The idea theoretically is you shouldn't have to accept something you don't want to get something you do. The Court says if it's part of a single scheme to do something, they are fine. In this case the judge said it's going to a top two primary, yet it affects clean elections and party registration and all that. But we're just going to do away with partisan primaries. Where the judge said they ran off the tracks, they also put in a provision that said for the election of precinct committeemen, who are party officers, and we're not going to allow any state resources to be used.

Ted Simons: Why was that included?

Howard Fischer: The argument Paul Johnson makes is that, we wanted to make sure there were no state funds spent on any partisan activity, which is, you know, politically correct, but legally it's a separate issue.

Ted Simons: That's a noble idea, good for you. But why are you putting it on this?

Mary K Reinhart: He's saying it's part of the scheme, the whole system. So in his view it doesn't violate the single subject rule. If you're going to have open primaries and nonpartisan elections, you gotta go all the way. The other side is saying this is wrong. It's a very separate and specific issue that the State of California exempted and didn't go there. We could have done the same thing.

Jim Small: If you don't go all the way with it, and get rid of the state-funded thing, eventually you have two ballots. You will have Republicans getting a Republican ballot for Republican P.C. elections, and then they’re going to get the normal primary election ballot with every candidate. You can't necessarily put them all on the same ballot, it makes it really difficult. You've got people who can come in, everyone will be able to vote, but not everyone can vote in the Republican primary.

Howard Fischer: But there is a way around that. You simply abolish partisan primaries. Since there's no partisan primary, there's no place to elect the P.C.s, and essentially it dumps it back on the parties. What happened here is it not only dumps it back on the parties. It's declared as a separate constitutional provision. You will never spend money on it. That's where I think they went a bridge too far.

Ted Simons: And Jim, there are other concerns regarding this particular initiative, correct?

Jim Small: Yeah, right now they are doing signature checks. The Secretary of State takes a percentage of these tickets, sends them out to the county recorders, who have to do spot checks. They do a sample and extrapolate from that sample as to how signatures are going to be valid, total. Right now in Maricopa County they have gone through about a third of the signatures they have been given to test. They found the invalidity rate is about 40%. If you extrapolate that out, when it comes back it'll put them in a bad place. They will run the risk of not qualifying for the ballot if that holds up as Maricopa County finishes the rest of its work. Even though they turned in 330,000 signatures, you know, because they have so many of them that are coming back rejected in Maricopa County, that could lead to either a full count of the entire 300,000 signatures, or could leave them short of the number they need, which would then lead to court.

Howard Fischer: This has happened on a couple of initiatives, including one on the our air, our water, our federal --

Ted Simons: The checks and balances initiave?

Howard Fischer: Yes. The system is interesting. You take that random sample. If the random sample says you're over 105%, poof, you're on the ballot. If you're below 95%, you're automatically off the ballot. The only place you get that signature by signature count that is 95 to 105. If they don't come between that, it's over. There's not even a procedure to challenge it in terms of saying, well, I want a full signature count. Hey, you came in at 87%, put a fork in it.

Mary K Reinhart: So it doesn’t even matter. The superior court has a briefing schedule and they could make a decision on this by next week.

Ted Simons: What's the timetable for the signatures?

Jim Small: I think they have got through next week, I think. I want to say it's the end of next week to finish at the county level, maybe the week after, to get that stuff back. We'll know in a matter of probably 10 days where this stands signature-wise. This is a completely separate issue from the constitutional challenge.

Ted Simons: They could want a court case and have the thing moot, it doesn't matter.

Howard Fischer: The same thing is going on with the sales tax measure.

Ted Simons: The Governor is not inclined to endorse Russell Pearce or his return to the Senate. Is that a surprise?

Howard Fischer: I don't think so. The Governor emerged for one of her -- I hate to say rare appearances. She's had a public thing once in the last four weeks. We all gather around as they shove her into the elevator to keep her away from the press… you know “governor do you support Russel Pearce?” The argument has been she owes her current office to Russell. Without 1070 someone else might have been governor. Her response was, I'm not inclined to. I don't know that it makes a big difference on that. The race will be decided on do you like Russell, don't you like Russell. I don't think that Jan's endorsement makes one bit of difference one way or the other.

Ted Simons: Yet she described him as a friend and colleague during the recall election. That would help fund-raising, as well.

Jim Small: It is significant, because she was one of the early people, arguably his biggest endorser. She did fund-raise for him and mail for him. The voters did decide based on Russell Pearce at the end of the day, and not Jan Brewer. It is significant. Looking at the larger picture, a lot of people who were defending Russell Pearce last year, who aren't necessarily out in front on it right now. Certainly it's because the dynamics are different, a regular election versus a recall. And there was a lot of Republican angst over misuse of the Republican process.

Mary K Reinhart: They didn't want to be next.

Jim Small: There was a lot of angst over the recall. A lot of people in the Capitol rallied to Russell's defense, regardless of what they thought of the recall. They gave him money and helped out his campaign. That's not there right now. His campaign is struggling for money. He raised about $3,000 or $8,000 in the first couple of months. We've heard reports it's continuing down that path, so there isn't a big groundswell of support for him in the Capitol community the way there has been in the past. I think the governor is the clearest indication of that.

Mary K Reinhart: The Governor could have just said, I'm not going to make any primary endorsement. That wouldn't have been an unusual thing for a governor to say about a Republican primary.

Ted Simons: Quickly, what is their relationship like?

Howard Fischer: When I talked to Russell he said, well, I didn't ask her for an endorsement, it's not a big deal, I'm doing fine and everything else. It's a little more distant than it used to be. Part of the dynamic's different. The recall is one thing say, look, you're misusing the process. Now it's an open primary with two bona fide Republicans.

Ted Simons: How is a friend and colleague not a friend and colleague anymore?

Howard Fischer: It's another thing to talk politics. Who would be best to represent the district, and it's easy for me to sort of stay out of that.

Ted Simons: The Arizona Commerce Authority, Jim, it's been a bumpy ride from the get-go for most, but not for Don Cardin. He gets his performance bonus, despite not completing the oral contract. We had Mr. Cardin on this week talking about the nonprofit arm of the commerce authority, which is supposed to be jobs and economic development to Arizona. Apparently he gets a pretty hefty bonus out of all this.

Jim Small: I think he got about a $60,000 bonus on top of the $300,000 salary and $1,000 a month car allowance and all of that.

Jim Small: Right. You know, he retired -- or resigned from the position at the end of June, announced back in January or February that was going to happen, so everyone knew it was coming. It did kind of raise eyebrows when people saw the bonus was a maximum of $75,000 on an annual basis. For him to get $60,000 of that, considering he announced halfway through that he was going to leave, kind of left some people scratching their heads. Okay. 5,000 jobs, what jobs are these? We don’t have any details about what jobs did he create? Where was his capital investment? Even if it's private money, is this right?

Howard Fischer: Well that’s where it gets really interesting. You say you grilled Mr. Cardin on the whole issue of this Team ACA, which is people contributing. We don't know who they are, whether they are going to be asking for favors, whether they are going to be paying part of the salary of the next director. That I think is what annoys people, yes. The $60,000 comes from private money. Why would people contribute $60,000 to help Don Cardin who is leaving, unless there's something else involved there? I think that's the question on everyone's mind.

Jim Small: Well, and more than that, you have this group raising this money. Say they raise a half a million dollars. If you're a company giving money into that, and that goes to pay the salary of the director, who then turns around and controls millions in state tax credits and tax incentives that go to the companies with the -- kind of no one to kick into those things. I think there's real perceptions of a potential for conflicts of interest that no one's really going to know about. It's a 501[C] process. It really does create problems for transparency going forward.

Mary K Reinhart: The jobs he's supposed to have created, many of them promised jobs, jobs that haven’t come here yet and haven’t materialized yet, and I'm not sure how the calculus worked out on that, either.

Ted Simons: $400 million in new capital investment? Howard, we hear about -- what are these jobs, where are these jobs?

Howard Fischer: That's the thing, you know, A, we've all been -- seen the announcements where they promised it. This leads to something we've talked about for 30 years on this show, which is some company comes down, Greater Phoenix Leadership takes credit. The Chamber takes credit, everybody takes credit for the same 5,000 jobs. How do we say this is Don Cardin who created this?

Ted Simons: We've got a couple of minutes left. Don Cardon, apparently a relative of Will Cardon, what's going on here? We heard he wasn't buying TV time, but now we hear he is buying TV time.

Ted Simons: Actually he is.

Jim Small: I have been corrected. You know, he went dark on the air. He had been spending about $350,000 a week airing commercials. I'm sure everyone saw it every time they turned the TV on, and suddenly they disappeared. They had gone completely dark, a little bit of money running on cable. Things were written about how they are off the air, and the campaign pushed back and said, we're doing a new commercial right now, we'll be doing the commercial soon. They did place a buy today, it was about $30,000 for two weeks for Phoenix and Fox News. We'll see if anything else pops up, but it’s all public record. We're not going to talk about her campaign strategy, but it's pretty easy to find.

Mary K Reinhart: We're three weeks out from the primary.

Jim Small: We're 10 days into voting and that's where we are.

Howard Fischer: The question is, was this just lousy planning? He needed to get his name out there, and I appreciate that. At some point you need to budget.

Ted Simons: Still double digits behind in the polls after so much spent so far.

Howard Fischer: Flake gets the benefit of the employee growth, who has been taking anti-Cardon ads because he backed the transportation tax and a few other things, saying he's not a real conservative. Again, this goes back to the issue of Political Primaries, you’re going after that red-meat crowd who are, in this state, on the far far right.

Ted Simons: We should mention we will have a debate for the Republican candidates coming up here on Arizona Thursday evening.